We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses. When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation. After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques.

In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements. The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord. Law schools are notably implementing these pedagogical reforms in a time of great political division. From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity. University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.

Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content. This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog. How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers? The stakes are high. In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods. This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.

This is a pedagogical conversation that gender faculty should lead and engage. In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback. Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing. We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.

For awhile, it looked like the appointments of new law deans this year was trending women. For my thoughts as to possible explanations for this trend, see my quoted comments in Karen Sloan, If It's a New Law Dean, It's Likely a Woman.

However, now as we near the end of the 2017 hiring season, it seems that the trend is less to a gender preference, and more to equality of appointment.

To date in 2017, 14 of 28 (50%) new deans are women. Two are women of color.

Still, a new study of law school deans, US Law School Industry: Dean Positions 2015-2016, concludes that “Law programs and their leadership remain potentially gendered. . . . Women continue to be substantially under-represented at the highest levels of leadership, though we find that differences are significantly less pronounced at Assistant and Associate Dean positions.”

In March 2014, the American Bar Association (ABA) voted to leave Accreditation Standard 405 undisturbed.” The ABA’s decision required law schools to continue to grant tenure to traditional law faculty, yet permitted them to continue to deny tenure to clinical and legal writing faculty. At the same time, recognizing the need for increased professional skills training, the ABA voted to increase the number of experiential credits law students mustcomplete from one to six. As explained to the ABA Council in advance, these two decisions work together to increase the demands on skills faculty, who are predominantly female, yet keep them at a lower professional status with less security of position.

Regrettably, the long and tortured history of Standard 405 suggests that the vision of equal opportunity for all law faculty—traditional, clinical, legal writing, academic support, and teaching librarians—is not going to be realized anytime soon. The highest and best security of position most professional skills faculty can likely hope for in the near future is that embodied in current Standard 405(c).Thus, law schools’ adherence to established best practices is necessary if “reasonably similar to tenure” is to mean something for those who struggle to and ultimately achieve 405(c) status

The most disturbing aspect of the continued discrimination against skills faculty and the abuse of Standard 405(c) is its disparate impact on women. Women represent roughly forty-three percent of all full-time law faculty, yet, according to 2013 statistics available from the ABA, only thirty-six percent of tenured or tenure-track faculty are female.

In stark contrast, sixty-three percent of 405(c) faculty are women (an increase from fifty-six percent in 2008).29 Because this number may not include legal writing faculty with 405(c) status, the overall percentage of women with 405(c) status may be even higher. This means that, to the extent law schools fail to comply with Standard 405(c), they are nearly twice as likely to disadvantage a woman as a man.

Even more shocking is that seventy-one percent (and holding steady since 2001) of legal writing faculty are women, which usually means they have the least security of position under ABA Standard 405(d). To the extent law schools fail to renew legal writing contracts in a manner inconsistent with 405(d), they are almost 2½ times as likely to disadvantage a woman.

I have long advocated for tenure eligibility for all law faculty regardless of subject matter. That said, ensuring fair compliance with Standard 405(c) is at least a beginning to the work that needs to be done to improve the status of a predominantly female professional skills faculty. Ostensibly, 405(c) protects clinical faculty, but law schools often fail to comply with it, and, as Professor Kathryn Stanchi points out, it acts in practice to cabin faculty and discourage academic freedom.

In this Chapter I will describe the inter-generational contributions of the first few decades of women law professors who have created a contested “canon” of new understandings of legal concepts in American jurisprudence and legal practice. I describe here the way in which several generations of women law professors (some working with legal practitioners) have forged new legal ideas or “memes” (cultural units of understandings), and legal causes of action that have reframed not only “women’s issues” (reproductive rights, employment and labor rights, family law, violence, rape and criminal law, as well as constitutional jurisprudence and different conceptions of “equality”), but have also contributed new conceptions or interpretations of mainstream legal concepts (e.g. in contracts, property, and torts etc.).

Those of us who have written about these developments over the years all acknowledge the inter-generational differences in meanings attributed to our goals as participants in the making of new legal epistemology—the interpretation of law and doctrine, the creation of new concepts, causes of actions, or legal “memes,” the creation of new courses and methods for learning law, whether and how our new epistemology should be integrated (or more controversially “assimilated”) into mainstream American law doctrine and education, how we have or have not influenced the legal academy and legal thought generally, as well as legal practice and law reform measures, and what lessons we offer for future generations of “outsiders” who are increasingly populating our profession with more diverse bodies and ideas.

Abstract

Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.

Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.

In addition to exploring these relationships between formative assessment and academic achievement, we discuss several race and gender effects that emerged in our analyses. Women, for example, were significantly more likely than men to complete the formative assessment. Women also received significantly higher grades than men in a spring-semester course on Legal Analysis and Writing; men, conversely, received significantly higher grades than women in a Legislation course. A race effect, meanwhile, emerged for students with LSAT scores at or above the school median: Among those students, nonwhite students who completed the formative assessment achieved significantly higher grades in Constitutional Law than white students who submitted the same exercise.

All of these relationships deserve further empirical study. In particular, our results suggest the importance of examining the transfer effects of formative feedback, gender differences in law school learning, and paths for improving the academic experience of minority students.

It has been 27 years since the first black man, an older student by the name of Barack Obama, was elected president of the prestigious Harvard Law Review. It has been even longer — 41 years — since the first woman, Susan Estrich, was elected to the position. Since then, subsequent presidents have been female, Hispanic, Asian-American, openly gay and black.

Only now, for the first time in the history of the venerable 130-year-old journal, is the president a black woman.

ImeIme (pronounced “Ah-MAY-may”) Umana, 24, the third-oldest of four daughters of Nigerian immigrants, was elected on Jan. 29 by the review’s 92 student editors as the president of its 131st volume....

“It still feels like magic that I’m here,” Ms. Umana said in an interview, though her fellow students said it was not magic at all but her sharp legal mind, intense work ethic, leadership ability and generosity of spirit that catapulted her to the top.

Ms. Umana’s emergence now has raised questions about why it took so long for a black woman to reach the pinnacle of the review and how her perspective may influence a publication that has for most of its existence been led by white men.

When Ms. Umana talks about the law, she speaks through the prism of her race and gender. Not far from her mind are the black women who in recent years died after encounters with law enforcement.

Unlike the vast majority of graduates of the nation’s top law schools, Ms. Umana says she has no interest in joining a high-paying corporate firm. Her dream for now is to become a public defender, a goal she set after an eye-opening internship last summer in the public defender’s office in the Bronx. She plans to work this summer with the public defender in Washington.

“A lot of the clients I worked with that summer and since have looked a lot like me,” she said. “They are disproportionately represented on the unfortunate end of the legal system, so it struck a little closer to home.”***

So why did it take so long to elect a black woman?

In Ms. Umana’s view, the lag reflects a wide gulf between black women and law school — and the law in general, a profession in which minorities have historically been underrepresented.

“We’ve been systematically excluded from the legal landscape, the legal conversation, and we’re just now making some important inroads,” she said in her office at the law review, which occupies Gannett House, a creamy 19th-century Greek Revival building that amid the law school’s imposing brick and concrete edifices looks like a New England cottage.

A 2014 study found a wide gender disparity at many of the nation’s top law reviews. It suggests that women do not apply in the first place for a host of reasons: They prioritize other parts of their lives, do not want to put in the extra hours that law reviews demand and are less interested in conventional markers of success like law review membership.

For the past seven years, the Women’s Rights Clinic operatingwith in the Law School of the College of Management in Israel has been engaged in an “assistance project” of the women cleaners working at the campus. This Article presents a discussion of interdisciplinary clinical work and focuses on an empowerment model developed in the Women’s Rights Clinic. It argues that clinical work for marginalized populations requires a holistic approach that is not limited to legal work alone, but enables the use of a combination of legal and extra-legal tools. The holistic approach illustrated in the Article emphasizes the importance of integrating into lawyering models skills from the domains of social work and therapy rooted in empowerment theory: developing empathy and listening, giving clients a voice, avoiding paternalism, and using emotional discourse in communication with clients.

Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result.

This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.

The wage gap in academia — even when controlling for rank — has been clearly documented. This article focuses on the affirmative defenses to the Equal Pay Act that play a central role in perpetuating this pay gap in legal academia. These include exceptions for prior salary, competing offers, and negotiation. These affirmative defenses fall under the rubric of “market excuses” and their existence eviscerates the very law that was meant to make the practice of paying men and women differently illegal. The article describes case law that interprets these affirmative defenses and applies the analysis in those cases to two recent, high-profile cases in the legal academic workplace. It will describe the current state of play in legal academia in terms of compensation decisions, the disparate impact that these practices have on women faculty and possible solutions, including the Paycheck Fairness Act.

The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. The ABA implementation date for the new Diversity & Inclusion CLE Policy shall be March 1, 2017.

Charges that the University of Denver’s Sturm College of Law violated federal law by paying women full professors less than their male counterparts, which first surfaced in 2013, now have become a federal lawsuit filed on Friday by the Equal Employment Opportunity Commission.

DU law professor Lucy Marsh originally filed the charges with the EEOC. The agency engaged in talks with the university to remedy the situation, but those efforts failed in May, according to the filing.

The suit says that Marsh had worked for the university for 37 years at the time of the 2013 charge, but that her annual salary, $111,977, was less than every male full-time law professor, including many who were hired after she started. Among nine full-time female full professors, the average annual salary was nearly $20,000 less than the full-time male professors — a finding the suit claims is statistically significant.

Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.

As law schools nationwide prepare to implement the new ABA requirements governing experiential learning and assessment, it is also appropriate to revisit the gendered critiques of the Socratic dialogue. Scholars such as Professor Lani Gunier and Professor Elizabeth Mertz have studied its disproportionately marginalizing effect on women and minority law students. While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and core upper-level courses. Law schools continue to design their budgets, curricula, and student experience around some degree of case-based, Socratic law teaching in large-lecture style classrooms.

But the Socratic method admittedly has some advantages that none of the other curricular innovations have. It is repeated hundreds of times in different courses, whereas a typical student in a law clinic will represent just a handful of clients on discreet legal issues. It is delivered to a large and diverse group of students allowing for competing perspectives and critical inquiry. It has robust volumes of existing teaching materials built around it making it the most economical method of law teaching. It is comfortable for many professors and law faculties because they were taught this way and they have taught this way for decades, thus allowing greater buy-in and ease of adaptation.

The Socratic method can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms. Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward ways to better align with curricular innovations in legal education and to create a more positive student experience. These adaptations are consistently (1) positioning client(s) at the center of the Socratic dialogue; (2) positioning law students as attorneys considering legal research and weight of authority as a springboard to client counseling and outcomes; and (3) sensitizing students to varied lawyering skills such as client counseling, settlement, drafting, and discovery within the Socratic case-based approach.

These re-framings of the Socratic method would create a more inclusive law school experience for all. These approaches reduce the hierarchy of the professor over the students and invite inclusive participation. The participation that is sought is more collaborative and inviting of diverse perspectives because it is offered as a means to advance client interests and goals, rather than to challenge the professor or a classmate. This would role model collaborative, collegial, and productive lawyering for our students, not just adversarial competencies.

This Article draws from the first systematic, comprehensive, mixed-method empirical law faculty diversity study to investigate how challenges in the classroom and bias in teaching evaluations affect female law faculty of color. The in-depth interviews of female law faculty of color are systematically analyzed using Atlas.ti software, finding that students directly challenge particular faculty in class, sometimes through verbal and even physical abuse, and write insensitive and irrelevant race- and gender-based comments on anonymous teaching evaluations. These encounters often have negative effects on the professional trajectory of women of color law professors, most notably when these individuals seek promotion and tenure. Instead of supporting these discriminatory barriers to advancement, legal institutions should do away with student evaluations altogether, modify them, or supplement them with more rigorous and less discriminatory forms of evaluation. This is the way to fight bias in teaching evaluations.

Challenging conventional wisdom is one thing; saying things that are historically inaccurate, inflammatory and racist is another. How much does academic freedom actually cover? If a history professor says something fundamentally wrong about a historical fact — such as misidentifying who staged the Sept. 11, 2001 terrorist attacks — is that person’s views covered by academic freedom or is that a question of professional competence? What if a poetry professor says the same thing?

***

While the real protections offered under the principle vary from campus to campus, faculty work is at least founded on the idea that there’s room to express even unpopular ideas or beliefs. But are arguably unacademic opinions — inflammatory falsehoods that have no apparent basis in fact — also covered? A recent case at Oberlin College raises questions about whether all ideas are created equal when it comes to academic freedom.

***

For the American Association of University Professors, the distinction is one of disciplinary expertise and professional competence, said Hans-Joerg Tiede, associate secretary in the department of academic freedom, tenure and governance. If, for example, a physics professor declared on Twitter that the Sept. 11 attacks were a hoax, AAUP would advocate for the professor’s right to free speech in extramural utterances (it doesn’t distinguish between free speech in person or online). But if the physics professor declared that the world is flat, denying all scientific evidence to the contrary, that could call into question his or her professional fitness.

“There’s a somewhat strange consequence that the less something relates to your discipline, the more protected you are on a general level,” Tiede said. “The closer something is to your area of expertise, you must in some sense be more careful that what you say doesn’t create concerns.”

Women of color are already severely underrepresented in legal academia; as enrollment drops and legal institutions constrict further, race and gender disparities will likely continue to grow. Yet, as many deans and associate deans, most of whom are white, step down from leadership positions during these tumultuous times in legal education, opportunities have arisen for women of color to fill those roles in record numbers. However, there are individual and structural barriers preventing access to the leadership level. Significant hurdles have long prevented women of color from entering law teaching. Thus, this Article provides evidence to support the thesis that ongoing changes in legal education will likely continue to create barriers both to entry and advancement for women of color law faculty members and those who aspire to join legal academia. This Article draws from quantitative and qualitative analyses of data drawn from the Diversity in Legal Academia (DLA) project, a landmark mixed-method study of law faculty diversity, which utilizes an intersectional lens to focus on the experiences of women of color in legal academia while also incorporating those of white men, white women, and men of color. Empirical findings reveal that structural barriers (i.e., outright discrimination) as well as more indirect obstacles prevent women of color from joining legal academia in meaningful numbers and also preclude women of color who are already legal academics from taking on leadership positions. Law school administrators and policy makers should work against these structural and individual barriers to increase and improve faculty diversity at all levels. Greater diversity in legal academia generally, and leadership in particular, will not only provide greater opportunities for particular law faculty members, but will also have a positive effect on law students, legal education, legal academia, and the legal profession overall.

We also note that when limiting publications to articles and essays, the gender differences remain statistically significant across all three outcome measures, but are smaller than for the full sample of publications. This reduction in the gender gap suggests that male faculty are more likely to receive invitations to participate in symposia and other solicited venues for publication than female faculty. This disparity accounts for at least some of the observed gender gap in productivity. ***

The gender difference in productivity we consistently observe warrants additional comment. Women write fewer articles post-tenure, are cited less frequently, and place in lower-ranked journals than men. The point estimates on gender reflect general comparisons between female and male faculty, and do not identify differences before and after tenure. In separate specifications, not reported, we examine female and male faculty separately. We find that across the full sample of publications, female faculty exhibit roughly the same productivity on all three measures before and after tenure, while male faculty’ publication count increases by 24 percent (their citation rate and journal placement do not meaningfully change).

The underlying explanation for these gender differences goes beyond the scope of this Article and warrants closer examination. Other studies have examined men and women in law school, the entry-level law teaching market, and the legal profession, often identifying large differences between the genders. The limits of our data make it difficult to further explore possible explanations for the differences we observe. We do not, for example, observe which faculty – men and women – are married or have children during the first ten years of their academic careers, either of which could influence their productivity. Part of the differences, we observe, however, may be institutional, given that we observed that men publish in symposia – typically solicited publications – disproportionate to their numbers in the academy.

I started out idealistic, and adamant that I could develop a better model of a school of education. What could be so hard, I thought, in "operationalizing" one’s ideas? What I have since learned: Nothing is more exciting or complicated in higher education as turning ideas into reality. It is way harder than rocket science.

So for any of you faculty members considering moving into administration, I have good news and bad news. The good news is that your background may be your greatest asset. The bad news is that it may also be your undoing as a capable administrator.

Queen's University's Faculty of Law is home to Feminist Legal Studies Queen's (FLSQ), a research group that expands awareness and development of scholarship in feminist legal studies, enables the development of feminist legal scholars at Queen's, and fosters connections among feminists with an interest in law. In the fall of 2014, I had the privilege of returning to Queen's Law to give the first seminar in FLSQ's 2014–15 lecture series. I was tasked with providing some reflections on why feminist legal theory matters. Some of the people attending the talk were also enrolled in the Queen's Feminist Legal Studies Workshop. The readings assigned for those students were (1) Toni Pickard's (retired Queen's law faculty member) wonderful introduction to law students at Queen's from 1987, (2) Patricia Monture's (a graduate of Queen's) 2004 piece, “Women's Words,” and (3) Ruthann Robson's (lesbian legal theorist and class critic) piece “To Market, To Market.”What follows is the text from that talk.

UW Law student Harlan Mechling couldn’t go to his little sister’s graduation from Willamette University, but his father did call to tell him she was graduating as a member of Phi Beta Kappa, a nation-wide honor society, with 42 other women and 16 men. Those numbers stood out to Mechling, instigating his research on gender inequity.

“The more I thought about it, the more I realized that’s not surprising because it’s consistent with my experience,” Mechling said. “Throughout my life, girls have always been at the top of the class.”

Mechling’s research revealed that women account for more than 60 percent of students graduating with honors, 9 percent higher than their percent of the student population. Despite these feats, most women will likely be getting paid only 78 percent of what their male colleagues will earn.

Kellye Testy, dean of the UW School of Law, believes her students face persistent gender discrimination once they’re out in the work world.

“One of the areas I’ve always been interested in is legal education,” Testy said. “We’ve been admitting women in law school a roughly equal number as men for a few decades now.

But if you look at the world and the number of CEOs, governors, law school deans, etc., the percentage of women is much lower than it should be.”

She clarified that it is not just the UW law school that is graduating equal numbers of men and women.

Mechling’s research used statistics from Phi Beta Kappa. He gathered stats from emails sent out to those who qualified and the number of people in the society, from 27 private and public universities. Mechling wanted to measure academics because it was one of the only measurements that was consistent across universities in different states.

He began his research thinking maybe the high percentage of women in honors was just a Northwest thing, but was surprised to find consistency among schools.

The research paper Mechling created, titled “Follow California’s lead — help women recover damages for workplace sex/gender discrimination,” also states that even with the same amount of work experience, women teachers are paid 11 percent less than male teachers within a year of graduating college. In business and management jobs, women make 86 percent of what men are paid. In sales it is even less, with women earning 77 percent of what men get paid, according to Mechling.

Testy believes it is because of implicit bias. She said gender equity is certainly moving in the right direction, but there’s a long history in the United States of gender discrimination.

Mechling said one way to address these issues is for states to have better non-discrimination laws.

“The best solution is a federal law amending the Equal Pay Act of 1973,” Mechling said. “There have been attempts to do that, but House Republicans keep shooting it down. I think the state is the only way it’s going to work because Congress has shown repeatedly that it’s not going to happen on the federal level.”

States tend to interpret the Equal Pay Act very broadly, according to Mechling. Usually there are four defenses for unequal pay and gender inequity, one of which allows employers to justify pay disparity as long as it’s any factor other than sex.

Cited in his research, the American Bar Foundation found only 6 percent of employment discrimination filings between 1987 and 2003 went to trial. Only one-third of those cases were successful. Even for employment discrimination cases, 40 percent are dismissed or lost at summary judgment.

Martina Kartman, a UW law student who was an intake investigator at the Seattle Office for Civil Rights, did the initial interviews at the office to determine if a discrimination case would be taken or not.

“I think one of the things that was most difficult about discrimination laws and enforcing them is that they are from the ‘60s,” Kartman said. “Our laws haven’t always kept up with change.”